Opinion

Guilt by Association: the Birmingham Games 2022 Association Right

Published: 29th July 2020
Area: Corporate & Commercial

Guilt by Association: the Birmingham Games 2022 Association Right

The Birmingham Commonwealth Games Act 2020 received Royal Assent on 25 June, signalling that although the Games are still two years away, things are starting to happen.

What is the Birmingham Commonwealth Games Act?

The Act lays the legal groundwork for the creation of a Games “association right” with effect from 25 August 2020, protecting the Games Organising Committee and official sponsors against unauthorised merchandising and advertising and so-called ambush marketing: the practice by wily marketing agencies and businesses of finding a way to associate themselves with a high profile event, and gain valuable marketing exposure, without paying for the privilege.

Memorable examples of ambush marketing include the branded orange clothing Bavaria Breweries issued to Dutch football supporters at the FIFA World Cup in South Africa to the dismay of the official beer sponsor Anheuser Busch; or Paddy Power promoting itself prior to the London Olympics as the official sponsor of “the largest athletics event in London this year” (an egg and spoon race in the French village of London, in Burgundy).

Rights of Association Guidelines

As the Act requires it to do, the Games Organising Committee has recently published Guidance designed to help businesses understand what "unauthorised association" means and where the line is drawn, and spelling out the consequences of getting it wrong. The guidance specifies examples of words which, when used in conjunction with each other or with a reference to a sport or sporting event, might be subject to enforcement action unless authorisation is obtained. The words include obvious candidates such as “Birmingham”, “2022”, “XXII” and “Commonwealth Games”, along with the less obvious “gold”, “silver”, “bronze”, “supplier”, “partner” and “medal”, among others.

The guidance includes a number of practical examples of what is and isn't likely to be allowed. For example, a marketing campaign by a tanning lotion brand which states "Go Bronze This Summer" is likely to be acceptable, whereas “Go Bronze in Brum” would probably not be. A café offering a “Birmingham 2022 Burger” would be in trouble, whereas advertising that it is “within easy walking distance of Alexander Stadium” would be acceptable.

The guidance states that the unauthorised association prohibition will be “enforced reasonably with a view to being positive, to enhance the operation and delivery of the Games in Birmingham in 2022, and not to overly restrict the operation of legitimate local and/or national businesses in the area". Based on our experience of similar provisions introduced for other previous Games, businesses should nevertheless be warned that the Organising Committee is likely actively to enforce this right in order to comply with its legal obligations to its official sponsors and the Commonwealth Games Federation.

Keeping within the law

Businesses should keep these wide ranging laws in mind when devising innovative marketing campaigns which may create an association with the Games, intended or not. The Organising Committee has also registered a number of trade marks relating to the Games, and owns copyright in logos and similar materials.  Care needs to be taken also to ensure these intellectual property rights are not infringed either, as they continue to apply alongside the Games-specific right of association.

For further information on the Association Right and how you can ensure your marketing activity stays on the right side of the line, we can draw on our experience of advising clients on the similar right for the London Olympics 2012.

Contact us
For further information please contact Kim Walker or another member of the intellectual property team.

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